Vojneski v The Queen [2015] ACTCA 44

Vojneski v The Queen [2015] ACTCA 44 - ACTCA 2015 case summary — Zoe

[38]

6 In the civil jurisdiction, Wilcox J discussed at some length the matters which, in his opinion, were deserving of consideration when considering an application for leave to extend the time within which to file a notice of appeal: see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The matters which attracted his Honour's attention were set out at 348-349:

1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time;

2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;

3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;

4. however, the mere absence of prejudice is not enough to justify the grant of an extension; and

5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.

7 There is no reason why these matters or guidelines, even though they were composed with respect to an application in a civil matter, should not also apply (and several authorities have decided that they do apply) in the criminal jurisdiction, save that where the liberty of the individual is at stake, the Court may be a little more lenient to an applicant in the exercise of its discretion.

...

17 What the Court will look for, above all else, in an application to extend the time within which to file a notice of appeal against a conviction which has led to a term of imprisonment, is satisfaction that there has not been, and will not be, a miscarriage of justice if leave is refused. This was emphasised by Nagle CJ at CL and Yeldham J in R v Lawrence [1980] 1 NSWLR 122 at 165-166 when they said:

"In these circumstances, we think the appropriate course is to refuse the applicants the extension of time which they seek, having regard to the delays and the failure to comply with orders of this Court to which we have earlier referred. But, before doing so, we have satisfied ourselves that no injustice has been caused to the applicants, and that no miscarriage of justice has occurred."

...

19 There will always be an onus on the applicant to explain the reasons for the delay - and the question of prejudice to the Crown cannot be overlooked. However, these and like matters cannot prevail if the Court is of the opinion that there is a reasonable probability that there might be a miscarriage of justice if leave is not granted.

[79]

Turning to the second limb of s 6(1) of the Criminal Appeal Act, it will be seen that to some extent it overlaps the first. A "wrong decision of any question of law" includes misdirections on matters of substantive law as well as misdirections on matters of adjectival law. And, as with the first limb, the question under the second limb will be whether the error constitutes a miscarriage of justice in the sense of a departure from trial according to law.
The third limb covers cases where, by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial.
That leaves the proviso, which in terms is applicable to all three limbs of s 6(1). It directs that, even where error of the kind identified in any of the three limbs is established and amounts to a miscarriage of justice, the Court of Criminal Appeal may dismiss the appeal if it is satisfied that the error has not been productive of a substantial miscarriage of justice. By "substantial miscarriage of justice" what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description. Consequently, if the Court of Criminal Appeal is persuaded that the first limb applies, it will follow that it has concluded that there has been a substantial miscarriage of justice. In contrast, where the second limb applies, the circumstances in some cases may be such that, despite the judge making "the wrong decision of [a] question of law", the Court of Criminal Appeal is persuaded that the error could not have deprived the appellant of a chance of acquittal that was fairly open to him or her. In that case the proviso will operate. Where the third limb is engaged, if the Court of Criminal Appeal has concluded that the appellant has not received a fair trial it will follow that it has concluded that there has been a substantial miscarriage of justice. But where, despite some other identified irregularity, the Court of Criminal Appeal is satisfied that the appellant has received a fair trial according to law and not otherwise been deprived of a chance of acquittal that was fairly open to him or her, once again the proviso will operate. It is also to be borne in mind, as was explained in Baiada Poultry Pty Ltd v The Queen and more recently noticed in Lindsay v The Queen, that, although the proviso is expressed in permissive terms, "if the condition (the conclusion that no substantial injustice has actually occurred) is satisfied" the proviso must be applied. (citations omitted)

[114]

Incident 1

17. It is alleged that on 3 March 2001 at an address in Red Hill the accused threatened to kill his sister BV and her children and cat while holding her against the wall and holding a large knife. He also threatened JB, his sister's partner, with a knife and assaulted him. The accused was intoxicated at the time. The accused was subsequently charged and convicted of offences arising out of this incident. ...

Incident 1 - consideration

54. The evidence in Incident 1 reveals the accused becoming angry and using a knife to threaten his sister and her partner while he was intoxicated. This is clearly evidence which is capable, taken with other evidence the Crown proposes adducing as tendency evidence, of being used by the jury to establish that the accused had alleged tendencies a), b), c) and d) as set out at [15]. It clearly has probative value and even though these events occurred 11 years before the death of the deceased, I am satisfied that, when taken with other more recent evidence of the use of a knife by the accused, it has significant probative value.

55. There can be no doubt that adducing evidence of the accused using a knife to threaten to kill another person at the trial of the accused, where it will be alleged he killed the deceased using a knife, may be prejudicial, in the sense that there is a danger that the jury may misuse the evidence in the way I have discussed. That danger, however, should not be overstated. The way in which the Crown proposes using this evidence does not involve a complex reasoning process, such that any risk that the jury will misuse the evidence is minimal and may be dealt with by appropriate directions. Courts should not readily conclude that juries will ignore the directions they are given as to how they may or may not use evidence in a trial: see Gilbert v The Queen (2000) 201 CLR 414 per McHugh J at [31]-[32]. In my opinion, the risk that courts most need to guard against is that the jury will not understand how they may use such evidence where the required reasoning process is complex. That is not the case here. I am satisfied that the probative value of the evidence substantially outweighs any potential prejudicial effect. ...

Incident 2

18. It is alleged that on 23 November 2002 the accused argued with his sister's partner, JB, at her parents' address in Giralang and the accused removed a knife from a kitchen drawer and stabbed JB in the chest. The accused later told a psychologist with ACT Mental Health that at the time of the stabbing he was intoxicated following use of both marijuana and alcohol. The accused pleaded guilty in the ACT Magistrates Court to offences of intentionally and unlawfully using an offensive weapon against another person likely to endanger human life and assault occasioning actual bodily harm arising out of this incident and was sentenced to 12 months' imprisonment, which was suspended. ...

Incident 2 - consideration

56. The evidence relevant to Incident 2 falls into the same category as that relevant to Incident 1. For the same reason, I am satisfied that the Crown should be permitted to lead this evidence ...

Incident 3

19. It is alleged that on 3 September 2004, the accused was with his mother JV at their address in Giralang. The accused became frustrated with his mother and punched her once to the head with a closed fist causing injury. On 10 August 2005, he was convicted of assault occasioning actual bodily harm and sentenced to a suspended term of 12 months' imprisonment. ...

Incident 3 - consideration

57. The evidence with regard to Incident 3, if accepted by the jury, is capable of establishing a tendency to become quickly aroused to anger and to act violently when angered (tendency a)). When taken with other evidence to be led by the Crown, I am satisfied it has significant probative value. For the reasons I have given concerning the admissibility of Incident 1, I am satisfied that the danger of a jury misusing this evidence is minimal if it is given appropriate directions as to its use. I am satisfied that its probative value substantially outweighs any potential prejudicial effect, and the Crown will be permitted to lead this evidence.

Incident 4

20. The Crown alleges that on 8 September 2007, the accused was in a relationship with MTC. On that day they were both at the accused's residence when the accused found out that MTC had given her telephone number to another man. The accused became angry and jealous. He took a knife from the kitchen, and while holding the knife threatened to kill MTC. ...

Incident 4 - consideration

58. The evidence the Crown proposes leading concerning Incident 4 would establish, if accepted by the jury, that the accused used a knife to threaten a person when he became angry with her. I am satisfied that this is evidence which is capable of establishing, when taken with other evidence, tendencies a) and b) alleged by the Crown. As no injury was inflicted on anyone, or damage caused to property, by the use of the knife, the evidence does not support tendency c). The risk of a jury, properly instructed, misusing the evidence is minimal, and I am satisfied its probative value substantially outweighs any potential prejudicial effect. The Crown will be permitted to lead this evidence ...

Incident 6

22. The Crown alleges that the accused was angry with AH, a resident of the apartment complex where the accused resided. The accused threatened to stab AH, then went to the car park and stabbed all four tyres on AH's car with a knife causing them to deflate. This occurred on 6 February 2011. Three days later the accused threatened to kill AH whilst holding a knife. The accused was charged with damaging property and pleaded guilty in the Magistrates Court. He was sentenced on 26 May 2011. ...

Incident 6 - consideration

61. Incident 6 involves an allegation that the accused used a knife to stab the tyres of a vehicle belonging to another resident (AH) in the unit complex where the accused resided, and threatened to stab AH. The evidence the Crown proposes leading could satisfy a jury that the accused was angry with AH because he believed AH had called police to complain about noise coming from the accused's unit. There is evidence that the accused was intoxicated. I am satisfied that this evidence has significant probative value, as it is capable, when taken with the other tendency evidence to be adduced, of establishing that the accused had tendencies a), b), c), and d). I am satisfied for the same reasons set out for Incident 1, above, that it's probative value substantially outweighs its potential prejudicial effect. The Crown will be permitted to lead this evidence.

Incident 9

25. The Crown alleges that on 16 January 2012, the accused and the deceased were together at his flat. The accused checked the deceased's mobile phone for messages and as a result suspected that the deceased had recently spent a night with her estranged husband. He contacted the deceased's friend, MC, and questioned her about this. Following this, he was angry with the deceased. He picked up a large carving knife and threatened her with it. He then pushed the deceased out of the flat, naked. He held the deceased over the balcony and caused bruising to her arms. ...

Incident 9 - consideration

64. The evidence concerning Incident 9 is found in a taped record of conversation between police and Moira Catto conducted on 30 March 2012. Ms Catto described herself as being a very close friend of the deceased. She told police that she attended the accused's unit on an occasion where the accused had thrown the deceased out of his unit after threatening her with a knife. The deceased told Ms Catto that they were both intoxicated and the accused attacked her and threatened her with a knife before throwing her out of the unit. The Crown proposes leading evidence from police who attended the accused's unit on 16 January 2012 in respect of an incident where the accused threw the naked deceased out of his unit, and then threw all of her belongings out as well. I am satisfied that this evidence has a significant probative value in that the jury could use this evidence, together with other evidence, to find that the accused had a tendency to act violently when angry and to then threaten to use knives. The jury could also use this evidence to find that the accused had a tendency to act violently when under the influence of alcohol. I am satisfied, for the same reasons that I gave with respect to Incident 1, that the probative value of this evidence substantially outweighs any potential prejudicial effect ....

65. While this evidence, if accepted, reveals the accused acting violently towards the deceased, it is the only incident which I propose admitting which supports tendency f). In my opinion, by itself, the probative value of this evidence, as evidence of tendency f), does not substantially outweigh its prejudicial value. Similarly, the evidence cannot support tendency c) as no harm was inflicted or damage done by use of a knife.

Incident 13

29. The Crown alleges that the accused had been using the drug "ice" since about 2005 or 2006. His mother and his brother VV gave him money to purchase drugs. If they did not give him money to purchase drugs, the accused became angry, would yell, be abusive and throw things around the house. ...

Incident 13 - consideration

71. With respect to Incident 13 the Crown alleges that the accused was a user of the drug "ice" and that he would become angry if his mother or older brother refused to provide him money to purchase drugs. In a record of conversation with the police on 29 March 2012 the accused's mother spoke of him being a drug user, and of him "Yelling and abusing and screaming, chucking things around in his house" if they did not give him money. If accepted by the jury, this evidence, together with other evidence adduced by the Crown, could establish tendencies a) and e). It is an important part of the Crown case that the accused was angry with the deceased because he could not obtain drugs on the night of 27 March 2012, in part because she had no money to purchase them. I am satisfied that the evidence has significant probative value, which substantially outweighs any potential prejudicial effect. ...

Incident 14

30. It is alleged that while in custody at the Alexander Maconachie Centre the accused assaulted a prison officer, JS, by punching him around the head. It is alleged the accused made a complaint to JS about someone else signing for his money and taking $50.00. JS advised the accused to fill in a complaint form so it could be investigated. Later, JS and another officer were standing in the exercise yard when the accused came through the door and started swinging punches at JS. Two punches landed on his face and one punch landed on the back of his head. The assault was unprovoked. ...

Incident 14 - consideration

72. Incident 14 is an allegation that the accused assaulted a custodial officer, JS, at the Alexander Maconochie Centre on 29 August 2013. It is alleged that the accused was angry because he alleged that someone else had signed for and taken $50 of his money. JS told the accused to fill out a complaint form so that it could be investigated. Later, the accused came into a yard where JS was performing his duties, in a highly agitated state with closed fists saying "It isn't my signature cunt". The accused then started punching JS. The accused was charged with assault arising out of this incident.

73. If accepted by the jury this evidence is capable of establishing, together with other evidence in the trial, alleged tendency a). The evidence has significant probative value. I accept that there is a potential for additional prejudice arising out of this evidence, because it will reveal that the accused has been held in custody. However, the jury will be directed that the accused was only in custody awaiting trial on this charge, such that the jury will not infer that he has a prior criminal history because of the fact that he was in custody. I am satisfied that the probative value of this evidence substantially outweighs any potential prejudicial effect....

[133]

59 The Crown points out, rightly, that the admissibility of tendency evidence cannot be considered in a vacuum. The decision whether to admit the evidence must be considered in light of the other evidence relied upon by the Crown to prove that the accused was the person who attacked JG. If the tendency identified stood alone in identifying the appellant as the offender in the JG offences, it would have to be sufficiently peculiar or singular to amount to what has been described as a "hallmark" or "signature" of the appellant such that it would offend common sense to exclude it.

...

63 Stripped to its fundamental elements, the Crown was alleging a tendency to sexual [sic] assault females in secluded locations with a particular interest in their breasts. The Crown was driven to generalise the tendency because of the difficulty of finding a specific tendency from the evidence in counts 1 to 6 that could be applied in counts 7 to 11. The evidence to prove the appellant committed the offences in counts 1 to 6 was coincidence evidence. The facts giving rise to the coincidence were: a man of 20 to 30 with athletic build and tanned skin dressed in cycling clothing with helmet and dark glasses and a bike accosted lone women on isolated bush tracks and asked them, "Show me your tits" before attempting to sexually assault them by the use of threats or force.

64 However, the Crown could not rely upon coincidence evidence arising from counts 1 -to 6 to prove counts 7 to 11 because there was none: the facts of the attacks upon JG were insufficiently similar to those surrounding the attacks upon the other three complaints. For example, the Crown could not rely upon the offender being dressed in cycling attire including helmet and sunglasses, and with a bike. Nor could it rely upon the type of the sexual assaults committed or the nature of the threats made or the words used. But in generalising a tendency derived from counts 1 to 6 to try to make it apply to counts 7 to 11 the probative value of the evidence was very significantly reduced.

65 A tendency to sexually assault females in secluded locations could not in my opinion have "significant probative value" to justify admission under s 97, even accepting that the gateway through that section is not particularly demanding. There is nothing peculiar about such a tendency that would identify a person with such a tendency as the offender against JG putting aside any other evidence of a persuasive nature to identify that offender. It would be more peculiar and, therefore, of significantly greater probative value, if the offender had a tendency to sexually assault females in the presence of members of the public. The addition of "bushland" to the "secluded location" in the description of the tendency was to my mind of no particular significance.

...

68 In my opinion the tendency relied upon by the Crown, when stripped to its essence, could not meet the test in s 97. But, in any event, if that were the only evidence upon which the Crown could rely to prove that the appellant was the offender in the JG assaults, it would fail the application of s 101(2). The major difficulty for the Crown was that there was little to connect the JG offences with those committed against the other complainants. The singular fact of the offender in the earlier matters being dressed in cycling apparel and accompanied by a bike was absent, a matter which obviously concerned the trial judge.

69 The prejudicial effect of the tendency evidence was clearly very high. Even though it was insufficient itself to prove beyond reasonable doubt that it was the same offender who attacked JG has attacked the other complainants, it was consistent with a characteristic displayed by the offender in the attacks upon the four complainants in a vague, general sense. There was a very real risk that a jury would give the evidence of such a tendency more weight than it deserved by finding that the kind of person who committed one or more of counts 1 to 6 was also the kind of person who committed counts 7 to 11 and for that reason convict the appellant.

70 The evidence was so prejudicial that I doubt that it could have been made admissible even had there been other reliable evidence to suggest that it was the appellant who attacked JG. That is because I do not believe that the evidence had any more probative value than evidence of an offender's criminal record that showed he had committed similar offences in the past. However, the tendency evidence, such as it was, should be considered against other evidence that the appellant committed the JG offences.

[149]

38. First, the provisions of the Evidence Act have effected change to common law principles, which are no longer to be applied. It follows that, whilst there may be assistance to be derived from the common law cases with respect to the underlying principles which inform the exclusion of tendency and coincidence evidence, those cases provide limited guidance as to the circumstances in which such evidence may now be admitted.

39. Secondly, although there is no necessary harm in using concepts which became familiar in the common law cases, such as the fact that evidence reveals "unusual features", "underlying unity", "system" or "pattern", which are essentially neutral as to the level at which such features are demonstrated, the language of "striking similarities" suggesting a particular strength of probability reasoning is no longer apt, because it is inconsistent with the test of "significant probative value": Simpson J in Fletcher at [60], commenting on a passage from Hoch v The Queen [1988] HCA 50; 165 CLR 292 at 294-295.

40. Thirdly, reliance on such language may distract (by creating a mindset derived from common law experience) and may provide little guidance in applying the current statutory test. As stated by Campbell JA in R v Ford at [125]:

"The Respondent accepts that the evidence in question has some probative value, but disputes that it has significant probative value. It submits that there is no striking pattern of similarity between the incidents. In my view there is no need for there to be a 'striking pattern of similarity between the incidents'. All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged."

41. Earlier, at [41], Campbell JA had stated:

"The case law contains examples of the way in which a tendency to engage in a particular type of behaviour can be relevant to whether an accused has committed a particular crime charged, even though that tendency does not in itself involve performance of a contravention of the same provision of the criminal law as that charged, or closely similar behaviour. In R v Li [2003] NSWCCA 407, Dunford J (with whom Spigelman CJ agreed) said at [11]:

'Section 97 is not directed only at evidence showing a tendency to commit a particular crime but showing a tendency "to act in a particular way". In this case it was directed to showing that the appellant had a tendency to use violence to the complainant and to seek to control her in stressful marriage situations, and was relevant to whether he did by his actions on the night in question effectively "detain" her; but it was not necessary for this purpose to show that he had detained her on any other occasion.'"

42. Fourthly, attention to the language of s 97 (and s 98) has the practical advantage of focusing attention on the precise logical connection between the evidence proffered and the elements of the offence charged. Thus, rather than asking whether there is "underlying unity" or "a modus operandi" or a "pattern of conduct" the judge can focus on the particular connection between the evidence and one or more elements of the offence charged.

43. Fifthly, there is an awkwardness in the separation of "tendency" evidence and "coincidence", at least in some circumstances. Thus, in a case such as the present, where there was no issue as to the identity of the alleged offender, but rather a dispute as to the occurrence of the offences, evidence of the accused's conduct on another occasion will combine the implausibility of independent complainants both falsely describing similar conduct with the inference that a person who conducted himself in a particular way on one occasion may well have done so again on another.

44. Sixthly, "tendency" evidence will usually depend upon establishing similarities in a course of conduct, even though the section does not refer (by contrast with s 98) to elements of similarity. That inference is inevitable, because that which is excluded is evidence that a person has or had a tendency to act in a particular way, or to have a particular state of mind. Evidence of conduct having that effect will almost inevitably require degrees of similarity, although the nature of the similarities will depend very much on the circumstances of the case.

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Judgment (192 paragraphs)

Vojneski v The Queen [2015] ACTCA 44 (31 August 2015)

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Legislation Cited (8)

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